HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 132142/2023
(1) R E PORTABLE: N O
(2) O F INTERE ST TO OTH E R JU D GE S: N O
In the m atter between:
FOXTAIL PROPERTIES (PTY) LTD
and
LPI INTERNATIONAL (PTY) LTD
(3) REVI SE D .
DAT E: IS A
SIG . A TU R
SW AT FIREARMS CENTRE CC
RUBICON INTERNATIONAL GRO U P
A pplicant
F irst R espondent
Second R espondent
HOLDINGS (PTY) LTD Th ird R espondent
RUBICON PROPERTY MANAGEMENT (PTY) LTD Fourth R espondent
ALL KNOWN UNLAWFUL OCC U PIERS Fifth R espondent
2
Summary: Application for leave to appeal launched by parties other than those
in the main application - Intervention - no application for leave to
intervene and no evidence placed before court - Leave to intervene
refused -Appeal in any event moot and without prospects of success
- Leave to appeal refused - Attorney having launched application
for leave to appeal on behalf of prospective intervening parties
without powers of attorney - failure to advance reasons why costs
not to be awarded de bonis propriis. Costs ordered against attorney
ORDER
1. The application for intervention is refused.
2. The application for leave to appeal is refused.
3. Jordaan Attorneys Inc is ordered to pay the costs of the applicant in
the main application in respect of the above two applications on the
scale as between attorney and client, including the costs reserved on
8 August 2025.
JUDGMENT
(IN THE APPLICATIONS FOR LEA VE TO INTERVENE AND FOR
LEA VE TO APPEAL)
3
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties ' legal representatives by email and by uploading it
to the electronic file of this matter on Caselines. The date of handing-down is
deemed to be 15 August 202 5.
DAVIS, J
Introduction
[l] On 30 January 2025 this court ordered the eviction of LPI International
(Pty) Ltd (as first respondent), Swat Firearms Centre CC (Swart CC) (as second
respondent), Rubicon International Group Holdings (Pty) Ltd (as third
respondent), Rubicon Property Management (Pty) Ltd (as fourth respondent) and
all other persons who, through or by virtue of these respondents, occupied certain
immovable property in Gauteng, from that property.
[2] At all relevant times a certain Mohamed Yaseem Adam (Mr Adam)
represented the second, third and fourth respondents and Miriam Bibi Adam (Mrs
Adam) represented the first respondent. These respondents had, after Mr and Mrs
Adam became aware of the application, delivered their notice of opposition
during October 2024 already. Their answering affidavits were however only
delivered on 28 January 2025 (being the initial day that the matter had been set
down for hearing).
[3] In the answering affidavit deposed to by Mr Adam, he identified four
natural persons who he alleged were employees of SWAT CC and who were also
occupiers of the property.
4
[4] The order granted on 30 January 2025 excluded persons occupying the
property for residential purposes.
[5] The order of 30 January 2025 gave the unlawful occupiers against which it
was directed 20 days to vacate the premises. By 27 February 2025, all the
respondents had removed all their movable property and had vacated the
property. Since that date none of the respondents or their employees had returned
to the property and it became vacant. It has since then been secured by the
applicant in the main application. The order in the main application had therefore
run its course and any appeal against it has become moot.
[6] On 5 March 2025 however, Jordaan attorneys Inc delivered an application
for leave to appeal on behalf of Agra Holdings 333 (Pty) Ltd (Agra) and "other
alleged unlawful occupiers and natural persons". It later appeared that the "other
unlawful occupiers" referred to, were SW AT Guns House (Pty) Ltd, represented
by its sole director Mr Adam , who also claimed to personally be an unlawful
occupier. Agra and these other occupiers purported to be the first and second
intervening parties.
[7] There was no formal application for leave to intervene at this juncture, but
in the application for leave to appeal it was alleged that leave to intervene which
had been requested at the hearing of the main application, should not have been
refused.
[8] I shall deal with the various aspects pertaining to the applications for leave
to intervene and leave to appeal separately and thereafter deal with the costs issue.
Unfortunately, I shalJ also have something to say about the conduct of the legal
practitioners who had moved these applications.
Ad the application for leave to intervene in the appeal process
5
[9] The application for leave to intervene in the appeal process appears to have
its origin in the initial application to intervene in the main application. As set out
in the reasons for judgment, at the hearing of the main application Adv Kohn
argued that he represented parties who wished to intervene in that matter. He
could ( or would) not identify those parties and neither was any formal or
substantive application for leave to intervene presented to the court, let alone any
affidavit from any such prospective intervening party.
[10] In an affidavit delivered by Mr Jordaan, practicing as Jordaan Attorneys
Inc in respect of the issue of de bonis propriis costs raised at the initial hearing of
the application for leave to appeal (with which I shall deal later), the said attorney
stated that he had on 30 January 2025 received instructions from persons (who he
referred to also as "the clients") to intervene in main application.
[ 11] As an explanation why no formal application for leave to intervene was
presented to the other parties or to the court at the time, the attorney stated in his
affidavit as follows: "A formal joinder application and papers were not yet
prepared and the draft papers rece;ved from the clients were not in order for
submission, as they w ere drafted by them. Counsel and I only had partial sight
of those docum ents and w ere not prepared to submit them without properly
considering the position".
[12] Accordingly, at the hearing of the main application, not only was there no
application for intervention before the court, but the attorney and his counsel,
despite having known the identity of their clients, refused to divulge their
identities to the court. This failure or refusal also made it impossible for the
applicant to answer to the supposition (and it cannot be put any higher than that),
that these clients might also have been in occupation of the property. One must
also bear in mind the context of the matter, namely the frustration caused by the
also bear in mind the context of the matter, namely the frustration caused by the
other parties represented by Mr and Mrs Adam at the time, not only to the
6
applicant, but to the liquidators who had sold the property to the applicant. The
oral request for leave to intervene was accordingly refused.
[13] The only change in circumstances from the oral, but fatally defective,
application for leave to intervene in the main application, to the similarly oral and
unsubstantiated attempt at intervention in the application for leave to appeal, is
that the proposed intervening parties have now been identified.
[14] There was still no fonnal application for leave to intervene and there was
no evidence of the proposed intervening parties' direct or substantial interest in
the order, apart from their own citation as unlawful occupiers. There was no
evidence, neither on oath or even otherwise, that they had been in occupation of
the property, either at the time of the order of 30 January 2025 or any time
thereafter. There was also no response to the allegation ( on oath) that the property
has been vacated since 27 February 2025.
[15] The response by attorney Jordaan to the issue is vague in the extreme. In
a letter from the applicant's attorney dated 10 March 2025, Mr Jordaan, who has
purportedly been acting for the proposed intervening parties since the delivery of
the application for leave to appeal on 5 March 2025, was alerted to the fact that
the property had been vacated on 27 February 2025 . Atto1ney Jordaan did not
respond to this letter, but stated the following in his affidavit resisting the risk of
a de bonis propriis costs order: "A lthough the efficacy of correspondence cannot
be placed in question, the same was considered at the hearing of the application
for leave to appeal. How ever, one should not place the blame for clients'
instructions at the door of an attorney having done his duty to inform the clients
of the legal position and the prospects of success. The prospects did not include
having knowledge of all events which occurred since 27 February 2025 at which
time the applicant indicates that the property is now completely vacant".
7
[16] Attorney Jordaan further sought to absolve himself by stating that he had
only consulted on 22 February 2025 prior to the launching of the application for
leave to appeal on 5 March 2025 but said nothing about why the letter of 10 March
2025 had not been responded to. He also failed to explain why , faced with the
risk of a personal costs order, he had no further consultations with his clients since
the receipt of the said letter or since the receipt of the "mootness affidavit" on 17
July 2025 or since the initial hearing of the application for leave to appeal on 23
July 2025, which had been postponed to accommodate counsel and to allow him
time to deliver his affidavit regarding the issue of costs de bonis propriis.
[17] To sum up, there was no application for leave to intervene at the hearing
of the main application and neither were the proposed intervening parties
identified. There was still no application for leave to intervene at the initial or
postponed hearings of the application for leave to appeal and, although the
proposed intervening parties have now been identified, there was no evidence
upon which a court could exercise its discretion to allow them to intervene or not.
Insofar as Adv Kohn has orally and without any evidentiary backing contended
that the proposed intervening patties should be allowed to intervene because of a
possible interest in the matter, that oral application is refused.
[18] As already stated, I shall deal with the liability for the costs of this abortive
application later but, in addition to the haphazard fashion in which this application
has been moved, I need to add the following at this juncture already, which may
have an impact on the scale of costs: both in the affidavit by Attorney Jordaan
and in oral argument by Adv Kohn, the point was made that the proposed
intervening party had too little time to prepare documents to intervene. This
contention must fail due to the fact that the apparent principal motivator for
contention must fail due to the fact that the apparent principal motivator for
intervention was Mr Adam. He had known about the main application and the
impending eviction of the respondents, including SWAT CC , for more than three
8
months prior to the hearing of the main application. In circumstances where he
had deposed to an affidavit on behalf of SWAT CC , he cannot claim that SWAT
Guns House (Pty) Ltd, whom he also represents, had only a day or two to
intervene. A contention that when wearing one hat he bad three months' notice,
but when he wears a different hat, he only had two days, is simply without
foundation.
Ad the application for leave to appeal
(19] Once the application for leave to intervene, such as it was, is refused, then
there is actually no application for leave to appeal before the court but, to do
justice to the arguments advanced, and because the notice of application for leave
to appeal invoked the refusal of the first oral application for leave to intervene as
one of its grounds, I shall deal therewith.
The application for leave to appeal itself
(20] The application for leave to appeal is a rather substantive document but, as
I shall indicate, none of the aspects raised therein, have any reasonable prospects
of success on appeal.
[21] The first topic dealt with in the application is that of eviction of persons
who occupy the property for residential, as opposed to commercial purposes. In
this regard it is argued that the court had erred in having ordered the eviction of
such persons without the processes of the PIE Act1 having been followed.
(22] At the hearing of the main application, the applicant therein freely
acknowledged that the prescribed PIE processes had not been followed and
therefore limited its application to occupiers who fall outside the PIE Act.
Accordingly, such occupiers were excluded from this court's order. There is
1 Prevention of Illegal Eviction from and Unlawful O ccupation of Land Act 19 of 1998.
9
therefore no relief against which an objection or an appeal can be raised on the
basis of non-compliance with the PIE Act. Arguments raised under this topic are
baseless and without foundation.
[23] An ancillary argument was presented in the application for leave to appeal
to the effect that there is "uncertainty" as to which occupiers were excluded from
the court's order. Again, this argument is without foundation. Mr Adam has, in
his already aforementioned answering affidavit, identified those occupiers by
name . Apart from the consequential absence of "uncertainty" as contended for,
none of these occupiers sought leave to appeal (or intervention). In addition,
these occupiers have already, without any intervention by the sheriff, left the
property on 27 February 2025. If this point had any legs, it has already become
moot.
[24] The next topic was that, despite the applicant being the lawfully registered
owner of the property, there is a dispute pending relating to that ownership, not
by the respondents, but by another party. That dispute has been dragging on since
2022 without any real pursuit thereof by the respondents or Mr Adam. This issue
has sufficiently been dealt with in the main application, with reference to the
additional evidence of the liquidators of the applicant's predecessor. There is
nothing new or of any substance raised in the application for leave to appeal
which would indicate any reasonable prospects of success on appeal.
[25] The next topic was one where the court was accused of having breached
the audi alteram partem rule by not having allowed unidentified intervening
parties the opportunity to be joined in the main application. I have already dealt
with this aspect above. There is no reasonable prospect that a court of appeal
would find that undisclosed parties should have been allowed to intervene in the
circumstances of this case.
10
[26] The next topic addressed in the notice of application for leave to appeal
was that "should annexures 8.1 and 8.2 be gleamed {sic) where the municipal
property value is recorded . . . the property rates are recorded to be R5 0 516. 00
... ". The point is then made that "there is no indication of a penalty and/or failure
to provide and/or apply for zoning for a shooting range. These costs only relate
to property rates for the owner's account". This point is spurious in the extreme,
to say the very least. The application only referred to the first pages of these
annexures. The second pages of annexures 8.1 and 8.2 respectively, expressly
indicate a calculation and imposition of penalties under the heading "non
permitted use". This contention is therefore also without foundation.
[27] As a last-ditch attempt, it was yet again argued in the application for leave
to appeal that an "extremely short time" had been given for the prospective
intervening parties to deliver their application for leave to intervene. This is,
again, not factually true and I have already dealt with this aspect earlier. In
addition, one should note that not only had Mr Adam had sufficient time and
oppottunity to deliver papers, but he had not, in his answering affidavit on behalf
of the respondents, identified the prospective intervening parties, including those
he subsequently claimed to represent.
[28] In these circumstances, I fail to find any reasonable prospect that another
court, on appeal, would find that previously undisclosed parties should have been
entertained or allowed to intervene in the main application.
[29] In all of the above premises, I find that there is no reasonable prospect of
success on appeal, as contemplated in section 17(1)(a)(i) of the Superior Courts
Act2. The purported intervening parties have also not made out any other grounds
2 10 of 2013 .
11
as to why it would be in the interests of justice, that leave should be granted, as
contemplated in section 17(1)(a)(ii) of the Superior Courts Act.
De Bonis Propriis Costs
[30] Although the proposed intervening parties have now been identified
(simply by having their names added to the heading of the application for leave
to appeal) they have not formally made any application to court. They have not
delivered a notice to apply for leave to intervene, nor has any deponent deposed
to any affidavit on their behalf.
[31] Counsel for the applicant therefore contended that a costs order cannot be
granted against a non-party. This appears to be correct3.
[32] This, as already indicated, raised the issue of whether the attorney who had
launched the application for leave to appeal, should not be ordered to pay the
costs de bonis propriis.
[33] Costs de bonis propriis may be ordered against a person who, in a
representative capacity, institutes action without reasonable prospects of success
or who causes unnecessary costs to another party or due to "unreasonable
conduct"4.
[34] In the present matter, attorney Jordaan has unreasonably caused an
application for leave to appeal to be launched, served, set-down and argued
without delivery of any application for intervention by his clients. This was
despite the fact that he, on his own version, has had sight of affidavits ( or
"papers") prepared by his clients, which he considered insufficient to place before
the court, since 30 January 2025. He had, nevertheless, forged ahead, without
3
Harm s, Civil Procedure in the Supreme Court, at B-410.
4 Ibid.
12
making any attempt to put either those or any other affidavits before court or to
alert his opponents as to the basis of his clients' case.
[35] What is even more shocking, is that the attorney had proceeded to act in
this fashion without the necessary powers of attorney. The only powers of
attorney which Jordaan had produced as annexures to his affidavit, were signed
on 9 April 2025, that is more than a month after the application for leave to appeal
had already been lodged on 5 March 2025.
[36] The last curious aspect about attorney Jordaan's conduct, is that in his
affidavit resisting a costs order, he repeatedly stated that he has advised his clients
of the risks of pursuing their (defective) application. He alleged that, at their
instance, he still proceeded to do so. In doing so, he knowingly then caused the
applicant unnecessary costs by continuing with unreasonable conduct without
prospects of success5.
[37] I find that, in these circumstance, the proper course is to order costs de
bonis propriis against the attorney. Having regard to the manner in which these
costs have been incurred, I find no reason why the applicant should proverbially
be "out of pocket" for any portion its costs. I also find that the conduct of attorney
Jordaan merits and award of costs on a punitive scale.
The conduct of counsel
[38] Regrettably, I have to say something about the conduct of counsel. The
conduct that concerns me relates to two issues. The first is one of non-disclosure
to court and the second to improperly abandoning a brief.
5
See Cooper v Moster of the Supreme Court (1998) 1 All SA 158 (N).
13
[39] The non-disclosure came about as follows: I repeatedly asked Adv Kohn
on 30 January 2025 on whose behalf be acted and on whose behalf he contended
leave to intervene should be granted. He disclosed no names and, as a reason for
that non-disclosure, indicated that "apparently" an affidavit existed, but which
was either not yet deposed to or not yet completed.
[ 40] It appears now from the evidence given by his instructing attorney, that not
only had "draft papers" indeed existed, but that counsel had sight of them. In
these "papers", the clients would have identified themselves or have been
identifiable. It was, however, deemed by the attorney to not be "in a proper from"
as it had been drafted by the clients themselves. None of this was disclosed by
counsel.
[ 41] Of additional concern, is that, when leave to intervene was initially sought,
counsel had not yet even appraised himself of the papers in the main application.
Admittedly, this might have been as a result of the lateness of his brief.
[ 42] The second aspect which caused embarrassment to the parties and
inconvenience to the court however, was the following: when the issue of de bonis
propriis costs was raised at the initial hearing of the application for leave to appeal
on 23 July 2025, Adv Kohn indicated that his attorney would need time to deliver
his affidavit. The coutt readily granted this opportunity and then enquired when
counsel would be available for the continuance of the matter. As often happens
with postponements of this nature, one counsel was not available on 5 and 6
August 2025 and the other indicated that he was not available on 7 August 2025.
The matter was then postponed to 8 August 2025 to suit both counsel. They both
confirmed in open court that they would be available on that date. Costs were
reserved.
14
[43] On the postponement date of 8 August 2025, counsel for the applicants in
the main application indeed appeared. Adv Kohn did not appear. He had sent a
junior practitioner as a "devil", with instructions to note a judgment. Adv Kohn
was apparently busy with an urgent application before another court in another
division. The junior had no instructions to argue the matter or to advance any
submissions regarding the issue of costs, de bonis propriis or otherwise.
[ 44] I do not deem it apposite to make any pronouncements on the possible
breaches of the Code of Conduct to which advocates are bound, but I direct that
a copy of this judgment be sent to the Chairperson of the Pretoria Society of
Advocates for further consideration or investigation. A copy w ill also be sent to
Adv Kohn.
Order
[ 45] In the premises, an order is made in the following terms:
1. The application for intervention is refused.
2. The application for leave to appeal is refused.
3. Jordaan Atton1eys Inc is ordered to pay the costs of the applicant in
the main application in respect of the above two applications on the
scale as between attorney and client, incJuding the costs reserved on
8 August 2025.
AVIS
Judge of the High Court
Gauteng Division, Pretoria
Dates of Hearing: 23 July and 8 August 2025
Judgment delivered: 15 August 2025
APPEARANCES:
For the Applicants: Adv R de Leeuw
15
Attorney for the Applicants: Schabort Potgieter Inc. Attorneys,
Pretoria
For the 1st - 4th Respondent:
For the intervening parties:
Attorney for the intervening parties:
No appearance
Adv M Kohn ( on 23 July 2025)
Jordaan Attorneys Inc. Pretoria